Environmental law and national security: can existing exemptions in environmental laws preserve DoD training and operational prerogatives without new legislation?

• Author: Willard, E.G.

1. INTRODUCTION

   The Department of Defense (DoD) has become increasingly concerned in recent years about the impacts of growth and environmental requirements on training and operations. Collectively these diverse impacts have come to be known as encroachment. (1)

   Examples of encroachment abound and have been extensively reported in the media. (2) The Marines at Camp Pendleton, California are prevented from digging foxholes and are forced to drive vehicles single file through protected habitat. (3) The Air Force at Nellis AFB, Nevada has stopped flying with live ordnance to the South because of the development of extensive housing just off the end of the runway. (4) The Air Force has also restricted operations on the Barry M. Goldwater Range to protect the breeding season and habitat for the endangered sub-species known as the Sonoran Pronghorn. (5) A proposed expansion to the Channel Islands National Marine Sanctuary and a proposed change to sanctuary regulations have threatened to restrict the Air Force's satellite launch operations at Vandenberg AFB, California. The Navy has nearly ceased operation on the Vieques Island ranges in Puerto Rico due to Clean Water Act litigation and political pressure. The Navy also has serious concerns about the impact of its latest sonar on marine mammals. (6) The Army, like all the services, has had to perform expensive "work arounds" to preserve training initiatives. Examples are Fort Bragg, North Carolina, where much has been spent to safeguard the red-cockaded woodpecker (7) and Fort Irwin, California, where protecting the Desert Tortoise (8) has adversely impacted realistic training.

   In an effort to combat this encroachment, in the 2002 legislative session, DoD proposed legislation known as the Readiness and Range Preservation Initiative (RRPI). (9) The RRPI came under heavy fire from environmental groups (10) but ultimately resulted only in a narrow exemption from the Migratory Bird Treaty Act, discussed infra.

   In March of 2003, DoD directed the service secretaries to "develop procedures that will ensure such cases are brought to DoD's attention sufficiently early in the regulatory or judicial process so that the Secretary may act to request (or in the case of the Endangered Species Act, direct) an appropriately tailored exemption before military preparedness is affected." (11) DoD again submitted legislation for the 2003 session (12) and on the 24th of November, President Bush signed the "National Defense Authorization Act of 2004" (13) with changes to the Endangered Species Act and the Marine Mammal Protection Act. (14)

   While this article will not attempt to present comprehensive solutions to encroachment, it will briefly describe the existing national security exemptions in our environmental laws and give examples of their use. It will also look at common law privileges that might afford DoD some relief.

2. EXEMPTIONS IN ENVIRONMENTAL LAWS

   1. RCRA (42 U.S.C. § 6961(a)): Presidential exemption for one year (additional one year exemption with new determination)--report to Congress required

      The Resource Conservation and Recovery Act (RCRA) (15) gives the Environmental Protection Agency (EPA) authority to regulate the treatment, storage, transportation, and disposal of hazardous waste from cradle to grave. (16) EPA has done so with an intricate permitting program that can make compliance complex and burdensome for the regulated entity. Of more importance to this article, however, are the regulatory requirements for biannual inventories of hazardous wastes generated and the requirement for EPA and state inspection of hazardous waste facilities. These requirements often pose the largest concerns for national security at DoD facilities because inspectors need to observe the processes that generate the hazardous wastes and because their reports are public records.

      With that backdrop, it is appropriate to explore RCRA's provision for potential exemption:

      The President may exempt any solid waste management facility of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting each such exemption. (17) This Presidential exemption to RCRA has rarely been invoked and there has been little litigation concerning it.

      An example, however, of such litigation is found in a Department of Energy argument that its Oak Ridge facility should not be required to obtain a RCRA permit. The U.S. District Court for the Eastern District of Tennessee held that the facility must either get a permit or apply for a presidential exemption. (18)

      Possibly the most famous invocation of RCRA's presidential exemption occurred with regard to a classified Air Force operating location near Groom Lake, Nevada. That situation began as two cases, Frost v. Perry (19) and Doe v. Browner. (20) Plaintiffs in the Browner case were employees at the site seeking to force the EPA to carry out its mandatory requirements under RCRA. Specifically, they wanted the agency to inspect the location. In Frost, a former employee's widow and others brought suit to compel the Air Force to comply with its obligations under RCRA. (21)

      To make a very long story short, EPA was granted summary judgment on most of plaintiffs' claims in the Browner case because it had already conducted an inspection and received an inventory from the Air Force by the time of trial. The inspection report and the inventory were classified, however, and the court found that this classification conflicted with RCRA's § 3007b public disclosure requirements. (22) The court ordered the EPA Administrator to either declassify the report or seek a presidential exemption. (23)

      Before resolution of the case on appeal, EPA sought and received an exemption from President Clinton as follows:

      I hereby exempt the Air Force's operating location near Groom Lake, Nevada from any Federal, State, interstate or local provision respecting control and abatement of solid waste or hazardous waste disposal that would require the disclosure of classified information concerning that operating location to any unauthorized person. Presidential Determination No. 95-45, 60 Fed. Reg. 52,823 (Oct. 10, 1995). (24) The Ninth Circuit upheld the exemption in the face of plaintiffs' arguments that the President could only exempt a facility from certain sections of RCRA but could not exempt documents by their status. The Court held that Congress left to the President's discretion what was in "the paramount interest of the United States." (25) That interest was the prevention of disclosure of classified information to unauthorized persons.

      The companion case, Frost, never reached the merits. The Court ultimately found the plaintiffs would never be able to state a claim because much of the requested discovery was classified. (26) The Air Force was not required to answer plaintiffs' discovery requests because of the state secrets privilege, which will be discussed infra under common law exemptions.

   2. CLEAN AIR ACT: Presidential exemption (42 U.S.C. § 7418(b)) for one year if in "the paramount interest of the United States"; hazardous air pollutants exemption (42 U.S.C. § 112(i)(4)); no exemptions for new source performance standards

      1. Refugees to Fort Allen

         The Presidential exemption for Clean Air Act (CAA) requirements has been invoked in one situation involving the relocation of Haitian and Cuban refugees to Fort Allen, Puerto Rico. From April to June 1980, approximately 114,000 refugees entered the United States, and the government was struggling to cope with the problem of overcrowding in refugee camps. (27) As part of the solution, the United States planned to relocate some of the refugees to Fort Allen, a United States Naval Communications Center that was due to be transferred to the Puerto Rico National Guard. (28)

         In the summer of 1980, the State (29) and local residents filed suit seeking to stop the transfer of refugees, alleging that the intended relocation violated, among other statutes, the National Environmental Policy Act (NEPA), (30) the Solid Waste Disposal Act (SWDA), (31) and the Clean Water Act (CWA). (32) In response, the President signed Executive Order 12244 exempting "each and every particular emission source located on Fort Allen ... from compliance with the provisions of the [Clean Air Act.]" (33) The Executive Order also exempted Fort Allen from CWA, SWDA and Noise Control Act (34) requirements. The U.S. District Court for the District of Puerto Rico held that the Executive Order was "a valid exercise of Presidential Powers notwithstanding its invocation by a party Defendant after the commencement of this litigation." (35)

         It should be noted that with respect to the SWDA exemption, the District Court subsequently reversed its ruling, holding that "the exemption from the Solid Waste Disposal Act ... is limited in scope and does not encompass the full range of the proven consequences of the refugee activities at Fort Allen." (36) The Court reasoned that because the statutory exemption only exempted solid waste management facilities and because Fort Allen did not have such a facility, requirements relating to solid waste producing activities were not exempt. (37) The District Court's holding was vacated by the...